Recommendation 10–1 Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the Act. Consideration should also be given to giving jurisdiction to appropriate state and territory tribunals.
10.7 The ALRC recommends that jurisdiction to hear actions for serious invasions of privacy under the Act should be conferred upon federal, state and territory courts. This position was widely supported by stakeholders. The ALRC considers it inappropriate to restrict the particular state and territory courts that may hear these actions.
10.8 In reaching this recommendation, the ALRC has taken into account a range of factors, including: the importance of access to justice; the need to minimise confusion or inconsistency in the application of legislation across Australian jurisdictions; the range of available remedies; issues of costs of proceedings; relevant constitutional issues; and existing courts and tribunals.
10.9 The plaintiff’s particular choice of court will likely depend on the jurisdictional limits of the various courts and the nature of the remedy sought by the plaintiff. The jurisdictions of the various courts are considered briefly below.
10.10 The power to vest judicial power in the Federal Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) arises under s 71 of the Australian Constitution. The jurisdictions of the FCA and the FCCA are generally conferred by a wide range of Commonwealth Acts such as the Bankruptcy Act 1966 (Cth), the Migration Act 1958 (Cth), the Australian Consumer Law, the Corporations Act 2001 (Cth), the Telecommunications Act 1997 (Cth) and the Privacy Act 1988 (Cth) (Privacy Act). As the ALRC recommends in Chapter 4, the new tort should be located in a Commonwealth Act, and this statute could vest power to hear actions in the FCA and the FCCA.
10.11 Given that many serious invasions of privacy may involve parties in different states or territories, vesting the power to hear privacy actions in courts with jurisdiction across the entire country—such as the FCA and the FCCA—may reduce the costs and burden for plaintiffs.
10.12 Both the FCA and the FCCA have, in addition to jurisdiction granted to them by legislation, ‘associated jurisdiction’ and ‘accrued jurisdiction’ for matters, not otherwise within these courts’ respective jurisdictions, that are related to matters which are within their respective jurisdictions. For example, while no statute confers jurisdiction on these courts for breach of contract actions, either court is able to hear a claim for breach of contract that is brought alongside a claim for misleading or deceptive conduct under the Australian Consumer Law. While associated and accrued jurisdiction would potentially mean that matters not currently within the jurisdiction of the FCA or FCCA could be heard by these courts, if brought alongside a privacy action, the ALRC does not consider this to be particularly problematic. Many related matters can already be brought before these courts—actions for defamation and negligence might be brought alongside an action arising under the Privacy Act, for instance.
10.13 However, the ALRC considers that the FCA and the FCCA should not have exclusive jurisdiction to hear actions under the Act, as in many cases it would be less costly for litigants to use state local courts or district or circuit courts to hear proceedings.
State and territory courts
10.14 State and territory courts include supreme courts, district or county courts, and local or magistrates courts. The Act, as a Commonwealth law, could vest federal jurisdiction in state and territory courts to hear the new cause of action.
10.15 Different powers are available to the different levels of state and territory courts. The supreme courts of the states and territories have general, unlimited jurisdiction.
10.16 District and county courts (and the ACT Magistrates Court) generally have similar powers to supreme courts, including powers to grant injunctions and equitable remedies. However, the jurisdiction of district and county courts is typically limited to certain values. For example, the County Court of Victoria may only hear claims up to $200,000; the District Courts of Queensland and Western Australia, may only hear claims up to $250,000; and the District Court of NSW may only hear claims up to $750,000.
10.17 The powers of local and magistrates courts with respect to civil actions are often restricted in certain ways. For example, the Local Court of NSW does not have jurisdiction to hear defamation proceedings; and the Magistrates Court of South Australia has powers limited to certain procedural functions, adjourning proceedings, certain statutory matters, and ‘minor civil actions’. Local and magistrates courts may have equitable jurisdiction and so may be able to hear breach of confidence actions, although this jurisdiction may be limited to cases where any relief claimed is an amount of money under a certain limit. Local and magistrates courts typically do not have the power to grant an injunction.
10.18 While the jurisdictions of the local, magistrates, district and county courts of the states and territories may, in some cases, have restrictions that limit their effectiveness in dealing with some privacy actions, the ALRC does not consider that there is any reason to expressly exclude these courts as possible forums for privacy actions. There would also be considerable benefit in terms of providing wider access to justice in privacy claims if these courts could hear some privacy actions.
Cost management in courts
10.19 While proceedings in courts may result in substantial costs for parties, there are mechanisms available to minimise these costs. Courts are variously empowered to direct parties to mediation, conciliation and arbitration, which are designed to offer cheaper and faster dispute resolution than litigation. Courts also have the power to waive fees and, in certain cases, fees are not payable. While these mechanisms will not remove the costs for all litigants, they do temper the costs associated with court proceedings in some cases. The ALRC also suggests that courts be empowered to make a range of costs orders.
10.20 Several states and territories have created tribunals that are able to hear civil matters, and which may be suitable forums for hearing privacy actions under the Act. These tribunals include the ACT Civil and Administrative Tribunal (ACAT); the NSW Civil and Administrative Tribunal (NCAT); the Queensland Civil and Administrative Tribunal (QCAT); the State Administrative Tribunal of Western Australia (SAT); and the Victorian Civil and Administrative Tribunal (VCAT). These tribunals have a range of powers including, in some cases the power to grant injunctions.
10.21 The appropriateness of these tribunals for dealing with privacy matters has been previously noted. For example, the Victorian Law Reform Commission recommended that jurisdiction for privacy actions should be vested exclusively in the VCAT:
VCAT is designed to be more accessible than the courts. It seeks to be a speedy, low-cost tribunal where legal costs do not outweigh the issues at stake. The experience in other jurisdictions demonstrates that any damages awards in cases of this nature are likely to be relatively small. The sums of money involved do not justify the level of legal costs usually associated with civil litigation in the courts.
10.22 There was general agreement among stakeholders that low-cost forums for hearing actions for serious invasions of privacy would be beneficial. Some stakeholders were in favour of state and territory tribunals being able to hear such cases. For example, the Redfern Legal Centre submitted that
several states and territories have created tribunals that are able to hear civil matters. The advantage of these tribunals is that they provide a relatively efficient and cost-effective way to resolve disputes and thereby allow a wider section of the community to access justice. We believe, for example, that the [Privacy and Personal Information Protection Act 1998 (NSW)] is much more effective in protecting the privacy rights of individuals in NSW because it includes a right of review in the NSW Civil and Administrative Tribunal (NCAT).
10.23 Other stakeholders were less supportive of state and territory tribunals being empowered to hear actions for serious invasions of privacy. The Law Institute of Victoria, for example, submitted that they
would be wary of establishing jurisdiction for (VCAT) to hear claims about serious invasions of privacy, because there is likely to be complex legal argument as the tort develops. Courts, and specifically judges, are best placed to hear and determine these types of disputes. Further, the rules of evidence do not apply in VCAT matters.
10.24 The Domestic Violence Legal Service and the North Australian Aboriginal Justice Agency were similarly cautious about empowering tribunals to hear actions under the Act, noting that
There may be some advantages in terms of cost and less formality for disadvantaged litigants in approaching a Tribunal rather than a Court, however, currently in the Northern Territory the Administrative Appeals Tribunal sits infrequently and so is not as readily accessible as the courts.
10.25 The powers and nature of state and territory tribunals differ significantly, and any conferral of power on these tribunals would need to take these differences into account. State and territory governments would then be in a position to enact legislation, if necessary, to confer jurisdiction on appropriate tribunals.
The role of government regulatory bodies
10.27 The OAIC’s proposal is discussed in greater detail in Chapter 16. The ALRC recommends that consideration be given to extending the powers of the Commissioner to allow investigations of complaints about serious invasions of privacy in general, in addition to the Commissioner’s existing power to hear complaints about breaches of the Privacy Act.
Competition and Consumer Act 2010 (Cth) sch 2.
Federal Court of Australia Act 1976 (Cth) s 32; Federal Circuit Court of Australia Act 1999 (Cth) s 18.
Stack v Coastal Securities (No 9) (1983) 154 CLR 261.
See, eg, Dale v Veda Advantage Information Services and Solution Limited  FCA 305 (1 April 2009).
The power to grant exclusive jurisdiction to federal courts is provided to the Commonwealth under s 77(ii) of the Australian Constitution. For an example of exclusive jurisdiction of the Federal Court, see Competition and Consumer Act 2010 (Cth) s 86.
This vesting of jurisdiction is possible under ss 71 and 77(iii) of the Australian Constitution and s 39 of the Judiciary Act 1903 (Cth) (in the cases of states), and s 122 of the Constitution (in the case of territories): James Crawford and Brian Opeskin, Australian Courts of Law (Oxford University Press, 4th ed) 57. A state or territory court will only have the power to exercise federal jurisdiction in line with ss 35 and 122 of the Australian Constitution where that jurisdiction power derives from a Commonwealth Act, not a state or territory act.
See, eg, Supreme Court Act 1970 (NSW) s 23; Constitution Act 1975 (Vic) s 85(1).
District Court Act 1973 (NSW) ss 44, 46; District Court of Queensland Act 1967 (Qld) ss 68, 69; District Court Act 1991 (SA) s 8; County Court Act 1958 (Vic) ss 37, 49; District Court Act 1969 (WA) ss 50, 55; Magistrates Court Act 1930 (ACT) ss 257, 258.
County Court Act 1958 (Vic) ss 3, 37; District Court of Queensland Act 1967 (Qld) s 68; District Court Act 1969 (WA) s 50; District Court Act 1973 (NSW) s 44.
Local Court Act 2007 (NSW) s 33.
Magistrates Court Act 1991 (SA) ss 8, 10, 15.
See, eg, Magistrates Court (Civil Proceedings) Act 2004 (WA) s 6.
See, eg, the following provisions for the power to order mediation: Federal Court of Australia Act 1976 (Cth) s 53; Civil Procedure Act 2005 (NSW) s 26; Civil Procedure Act 2010 (Vic) s 48(2)(c); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 50.07.
Civil Procedure Regulation 2012 No 393 (NSW) reg 11.
See Ch 12.
South Australian Civil and Administrative Tribunal Act 2013 (SA). This Act provides for the establishment of the South Australian Civil and Administrative Tribunal (SACAT). However, at the time of writing, the SACAT had not begun operation.
ACT Civil and Administrative Tribunal Act 2008 (ACT) s 22; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 123; State Administrative Tribunal Act 2004 (WA) s 90 (interim injunctions only).
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) [7.226].
Redfern Legal Centre, Submission 94.
Law Institute of Victoria, Submission 96.
Domestic Violence Legal Service and North Australian Aboriginal Justice Agency, Submission 120.
Office of the Australian Information Commissioner, Submission 90; Office of the Australian Information Commissioner, Submission 66.
Australian Privacy Foundation, Submission 110; Australian Communications Consumer Action Network, Submission 106; G Greenleaf, Submission 76.